"To promote the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."[1]

The organization plays a central role in networking and mentoring young conservative lawyers.[8] According to Amanda Hollis-Brusky, the author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, the Federalist Society "has evolved into the de facto gatekeeper for right-of-center lawyers aspiring to government jobs and federal judgeships under Republican presidents."[6] According to William & Mary Law School professor Neil Devins and Ohio State University professor Lawrence Baum, the administrations of Ronald Reagan and George W. Bush "aimed to nominate conservative judges, and membership in the Federalist Society was a proxy for adherence to conservative ideology."[9]

The society is a membership organization that features a student division, a lawyers division, and a faculty division. The society currently has chapters at more than 200 United States law schools and claims a membership exceeding 10,000 law students. The lawyers division comprises more than 60,000 practicing attorneys (organized as "lawyers chapters" and "practice groups" within the division) in eighty cities.[2] Its headquarters are in Washington, D.C. Through speaking events, lectures, and other activities, the society provides a forum for legal experts of opposing views to interact with members of the legal profession, the judiciary, law students, and academics.[2][10]

Background

The society looks to Federalist Paper Number 78 for an articulation of the virtue of judicial restraint, as written by Alexander Hamilton: "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature... The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body."

The society was founded in 1982, thanks to sizable donations. Writes Jane Mayer:

the Olin foundation provided crucial startup funds for the Federalist Society, an organization for conservative law students founded in 1982. With $5.5 million from the Olin foundation, as well as large donations from foundations tied to Scaife, the Kochs, and other conservative legacies, the Federalist Society grew from a pipe dream shared by three ragtag law students into a powerful professional network of 42,000 rightleaning lawyers, with 150 law school campus chapters and about 75 lawyers’ groups nationally.

Members of the society helped to encourage President George W. Bush’s decision to terminate a nearly half-century-old practice of rating qualifications for office for judicial nominees by the American Bar Association. Since the administration of President Dwight D. Eisenhower, the American Bar Association provided the service to presidents of both parties and the nation by vetting the qualifications of those under consideration for lifetime appointment to the federal judiciary. The society alleged that the bar association showed a liberal bias in its recommendations.[18][19][20] Examples given included that while former Supreme Court clerks nominated to the Court of Appeals by Democrats had an average rating of slightly below "well qualified", similar Republican nominees were rated on average as only "qualified/well qualified." In addition the bar association gave Ronald Reagan's judicial nominees Richard Posner and Frank H. Easterbrook its lowest possible ratings of "qualified/not qualified",[21] and Judges Posner and Easterbrook have gone on to become the two most highly cited judges in the federal appellate judiciary.[22]

In The Federalist Society: How Conservatives Took the Law Back from Liberals by Michael Avery and Danielle McLaughlin, the authors write that every federal judge appointed by both President George H.W. Bush and President George W. Bush was either a member, or was approved by members of the society.[10] Avery and McLaughlin write that the society is primarily a "group of intellectuals."[23]

Critics say the organization favors judicial activism, in particular on social issues.[24] Many members of the Federalist Society favor overturning Roe v. Wade, the Supreme Court ruling that permits abortion.[24] The organization tends to favor judges who take conservative stances on abortion rights and other social issues.[24] Members of the Federalist Society have presented oral arguments in every single abortion case that has been before the Supreme Court since 1992.[25][page needed] The Federalist Society shares strong ties with political advocacy groups within the Christian family values movement.[25][page needed]

According to the authors of Building Coalitions, Making Policy: The Politics of the Clinton, Bush, and Obama Presidencies (2012), "Federalist Society members declaim the notion that they are united around a particular philosophy," although many members have been associated with textualist or originalist methods of constitutional interpretation. Judicial restraint tends to align with conservative views on abortion and LGBT rights, while "Critics point out that conservatives are typically not so intent on following 'original meaning' in areas such as affirmative action, executive powers, free speech and federalism."[26]

The Federalist Society opposes regulation of private property and private businesses, and has argued that specific regulations must be enacted by legislatures rather than courts or executives that interpret existing statutes and powers.[25][page needed][24]

The ideas of the Federalist Society were "at the intellectual heart" of King v. Burwell, which challenged the constitutionality of the Affordable Care Act, with members of the group playing a "mostly behind-the-scenes part in King — and in many of the most significant conservative legal victories of the last 30 years."[27][8] In her book on the history of the Federalist Society, political scientist Amanda Hollis-Brusky writes that the Federalist Society "invested in the litigation efforts against the ACA well before the Act was signed into law—before there was even anything concrete to litigate against."[8]

Members of the Federalist Society have argued that courts should not take race into account when making decisions.[25][page needed] For example, members of the group have argued that civil rights cases involving racially discriminatory policies should not consider race, but rather the individuals involved.[25][page needed] Federalist Society members were extensively involved with the Parents Involved in Community Schools v. Seattle School District No. 1 ruling where the Supreme Court struck down voluntary desegration plans in several jurisdictions.[25][page needed] The authors of The Federalist Society: How Conservatives Took the Law Back from Liberals write that "Conservatives believe, however, that it is not appropriate for the government to promote racial balance. The essence of the conservative position is that there is no legal difference between considering race or gender for purposes of exclusion and considering race or gender for purposes of inclusion. They argue that both are harmful and make racial problems worse. On the other hand, many civil rights advocates believe that because our history has been one of the systematic exclusion of racial minorities and women from social, political, and economic institutions and from positions of power and influence, the conservative view leads to the continuation of exclusion and retards society’s ability to move toward inclusion."[25][page needed]

The Federalist Society has forcefully argued against regulations on guns. Members hold that the Second Amendment protects the rights of individuals to guns, as opposed to being a collective right to arms. At the time of the Federalist Society's creation and since the 19th century, the Supreme Court and academics had held a more restrictive view of gun rights. The Federalist Society was influential in shifting legal views on gun rights, culminating in the Supreme Court ruling District of Columbia v. Heller which struck down gun regulations in the District of Columbia that required guns to be kept "unloaded and disassembled or bound by a trigger lock".[8]

The Federalist Society had a significant influence on the Citizens United Supreme Court ruling which seriously weakened regulations on campaign finance.[8]

Trump administration

The Federalist Society has been influential in the Trump administration, hand-selecting Supreme Court Justice Neil Gorsuch and recruiting a slate of conservative judges to fill vacancies throughout the federal judiciary.[29][30][9] The society helped to assemble the list of 21 people from which Donald Trump said he would choose a nominee to replace Antonin Scalia on the U.S. Supreme Court. Nine of the 21 individuals spoke at the society's annual convention in late November 2016, while nearly all of the others were in attendance.[31][32] Federalist Society members have generally chosen not to criticize President Donald Trump and Politico described the Federalist Society membership as "elite, conservative lawyers who have generally chosen to give Trump a pass on his breaches of long-cherished legal norms and traditions in exchange for the gift of Supreme Court Justice Neil Gorsuch."[30] Federalist Society executive vice president Leonard Leo said: "What President Trump has done with judicial selection and appointments is probably at the very center of his legacy, and may well be his greatest accomplishments thus far."[33]

^Roberts was reported to have been a member of the society, but Roberts's membership status was never definitively established. Deputy White House press secretaryDana Perino said Roberts "has no recollection of ever being a member."[35] Following the report, the Washington Post located the Federalist Society Lawyers Division Leadership Directory, 1997–1998, which listed Roberts as a member of the Washington chapter steering committee;[36] however, membership in the society is not a necessary condition for being listed in its leadership directory.[36]

^Riehl, Jonathan (2007). The Federalist Society and Movement Conservatism: How a Fractious Coalition on the Right is Changing Constitutional Law and the Way We Talk and Think about it. The University of North Carolina at Chapel Hill. p. 141. ISBN9780549128793.